Claimant's motion for default judgment denied; defendant's cross motion for relief pursuant to CPLR 3012(d) denied for failure to demonstrate entitlement to the relief requested.
|Claimant short name:||ANEKWE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||PETER ANEKWE, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 20, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim on December 27, 2016. After issue was joined, claimant moved to dismiss affirmative defenses, which motion was denied because claimant filed an amended claim prior to the return date of the motion, and the amended claim "is the claim that is now pending subject to whatever legal objections may apply" (Anekwe v State of New York, UID No. 2017-038-562 [Ct Cl, DeBow, J., Sept. 13, 2017]). Claimant now moves for default judgment upon defendant's failure to answer the amended claim (M-92379). Defendant opposes claimant's motion and cross-moves for an order compelling claimant to accept defendant's answer and/or vacating defendant's default. Claimant opposes the cross motion.
Turning first to claimant's motion, the weight of precedent holds that a default judgment cannot be granted against the State in the Court of Claims (see Massiah v State of New York, UID No. 2018-053-503 [Ct Cl, Sampson, J., Jan. 8, 2018]; Galunas v State of New York, UID No. 2016-044-567 [Ct Cl, Schaewe, J., Dec. 14, 2016]; Antonetti v State of New York, UID No. 2009-030-527 [Ct Cl, Scuccimarra, J., Apr. 29, 2009]; but see 247-59 W., LLC v State of New York, 27 Misc 3d 570 [Ct Cl 2010] [default judgment on liability entered where defendant conceded liability upon contract for lease of property]). Even if the Court were inclined to consider granting a default judgment against the State, it would not do so here because claimant's motion is not supported by sufficient proof of defendant's negligence, and "[n]o judgment shall be granted on any claim against the state except upon such legal evidence as would establish liability against an individual or corporation in a court of law or equity" (Court of Claims Act § 12 ). Accordingly, claimant's motion will be denied.
That part of defendant's cross motion seeking an order vacating its default is unnecessary, as no order or judgment on default has been entered (cf. CPLR 5015 [a]). To the extent that defendant requests that claimant be compelled to accept its answer to the amended claim, such relief is appropriately sought to "compel the acceptance of a pleading untimely served " (CPLR 3012 [d] [emphasis added]). Having made the instant cross motion, defendant implicitly concedes service of the amended claim, and it does not dispute that the amended claim was served upon it in March 2017 (see Claimant's Affidavit of Service, sworn to March 7, 2017). Defendant does not assert, suggest, or otherwise demonstrate that its answer to the amended claim was served upon claimant and rejected by him, which would provide the predicate for the relief defendant requests in its cross motion (see e.g. Watson v Pollacchi, 32 AD3d 565 [3d Dept 2006]). Inasmuch as defendant has not demonstrated its entitlement to either of the two forms of relief requested, its cross motion will be denied. Accordingly, it is
ORDERED, that claimant's motion number M-92379 is DENIED, and it is further
ORDERED, that defendant's cross motion number CM-92556 is DENIED.
September 20, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 128992, filed December 27, 2016;
(2) Verified Answer, filed January 17, 2017;
(3) Amended Pleading [Claim], filed March 9, 2017;
(4) Decision and Order, Anekwe v State of New York, UID No. 2017-038-562
(Ct Cl, DeBow, J., Sept. 13, 2017);
(5) Decision and Order, Anekwe v State of New York, UID No. 2018-038-525
(Ct Cl, DeBow, J., February 21, 2018);
(6) Notice of Motion, dated May 29, 2018, with Attachments;
(7) Affidavit of Peter Anekwe in Support of Notice Motion to Court for Default, sworn to
June 14, 2018;
(8) Affidavit of Peter Anekwe of Facts in Support of Notice of Motion for Default, sworn to
June 14, 2018 with Exhibits 1 with Sub-exhibits A-J;
(9) Notice of Cross-Motion, dated July 11, 2018;
(10) Affirmation of Elizabeth A. Gavin, AAG, in Opposition to Motion for Default Judgment
and In Support of Cross-Motion to Compel, dated July 11, 2018, with exhibits A-G;
(11) "Affirmation" of Peter Anekwe in Opposition to Defendants Cross Motion and Verified
Answer, dated and Verified July 19, 2018.